Viacom focused on PR war win with latest YouTube doc dump

Viacom has released more internal Google documents that it says show that the …

Viacom and Google's fight for public sympathy in their copyright lawsuit continues with Viacom's release of more "smoking gun" documents. The media company says the latest show that Google "made a deliberate, calculated business decision" to profit from copyright infringement after its purchase of YouTube in 2006. Nonsense, says Google in response.

The search engine giant not only infringed, it used the prospect of infringement to try to force rights owners into licensing deals favorable to Google, Viacom insists.

"It did not have to be that way," Viacom Vice President Stanley Pierre-Louis added in a commentary on the new docs. "Prior to acquiring YouTube, Google operated its own video sharing site, Google Video, and in running it made reasonable efforts to keep infringing works off the site. Indeed, Google persisted in these copyright-respectful practices even as YouTube gained ground through its illegal acts; and Google did so because its employees knew full well that the YouTube approach was both illegal and wrong."

Baloney, responds Google. "It's revealing that Viacom is trying to litigate this case in the press," the company declared in a statement sent to us. "These documents aren't new. They are taken out of context and have nothing to do with this lawsuit."

How do we win?

The materials that Viacom has put up for public view are older PowerPoint presentations about marketing strategy used by Google Video, back then a competitor with YouTube, and sent to Google CEO Eric Schmidt. One presentation acknowledged that "premier content owners perceive YouTube as trafficking mostly illegal content." They see it as a "Video Grokster," a slide observed, referring to the famous 2005 Supreme Court decision shutting down the P2P service.

Viacom says Google shared this Groksterian view of its then competitor. "When Google's management considered the possibility of acquiring YouTube and thereby adopting its illegal approach, several of Google's senior employees spoke out" on the matter, Pierre-Louis says.

But getting back to Google's context charge, an important legal question may be whether Google Video staff were "speaking out" on the YouTube acquisition in these slides or pondering how to compete with YouTube. Comments on the slides include an acknowledgement that YouTube enjoyed more traffic than Google Video. On the other hand, they also included a reference to research noting that "YouTube's content is all free, and much of it is highly sought after pirated clips."

YouTube's business model, a subsequent slide mentioned, "is completely sustained by pirated content. They are at the mercy of companies not respondent with [Digital Millennium Copyright Act takedown requests]. when they do (like CSPAN did with S. Colbert), they suffer."

Finally, a slide titled "How do we win?" suggested that Google Video could offer a superior partnership to content owners. "(we should beat YouTube by improving features and user experience, not being a 'rogue enabler' of content theft)," a key slide point urged.

"Include in partnership terms that content owners will do at least one of the following:

clamp down on copyright infringers with DMCA notice within X hours

allow us to upload viral clip from infringing site and host it ourselves

or... pay us for lost traffic

Threaten
a change in copyright policy as part of a PR campaign complaining about
harm to users' interests through content owner foot-dragging—use
threat to get standard deal sign-up"

Viacom's point: Google Video (and therefore Google) knew YouTube was engaged in infringing activities and even disapproved of them (although sometimes it seems like the division didn't, as in "Threaten a change in copyright policy as part of a PR campaign..."). In any event, "Google nonetheless went ahead with the acquisition and explicitly embraced infringement as a business model," Viacom veep Pierre-Louis says.

Rough them up

However you read these documents, it looks like Viacom hopes that they will bolster its charge that after the YouTube sale, Google engaged in "high tech extortion" against Viacom, putting heat on the content owner to sign a $590 million licensing agreement, in exchange for which Google promised to use anti-infringement fingerprinting technology. When the companies couldn't negotiate a deal, Google balked at the fingerprinting, at least until 2008. Viacom calls this move a means to push copyright holders into licensing agreements.

Google counters that Viacom did a huge chunk of the illegal uploading that Viacom is litigating about now. "For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there," Google's petition for summary judgment asserted. "It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately 'roughed up' the videos to make them look stolen or leaked."

To which Pierre-Louis responds: "And yes, we've seen it: Google's public relations machine has been trying to shift the blame to us, because some Viacom employees did in fact use YouTube for promotional purposes. But this is a problem YouTube and Google created, not Viacom. We asked for the ability to identify to YouTube which clips were promotional, but YouTube and Google did nothing because they didn't want to know. In the law this is called 'willful blindness'."

The sky has not fallen

It will be up to the United States District Court's Southern District of New York, of course, to decide whether these PowerPoint slides are in or out of context.

In: they show that Google knew about YouTube's infringing ways and was already thinking about means to capitalize on content owners fears.

Out: they show that Google had a general knowledge that YouTube users were uploading illegal content, to some degree because of research they'd read. But the discussions they had at that time were focused on how to compete with YouTube, not how to acquire it or what to do after it had been acquired.

Another crucial question will be how much this "knowledge" falls within or beyond the "safe harbor" provisions of Section 512(c) of the DMCA. Advocacy groups led by the Electronic Frontier Foundation worry that a smackdown on Google could chill the prospects for online content sharing services that depend on these protections.

But Viacom insists that its suit targets "intentional and willful unlawful conduct" and won't harm the 'Net.

"Today Google itself does what we say they should have done from the get-go—namely, employ the use of tools like digital fingerprinting to identify and discourage obvious copyright infringement—yet the sky has not remotely fallen," Pierre-Louis' statement concludes. "YouTube is still there to host millions of videos even after moving to a more respectful copyright posture. Google and YouTube should have taken responsibility from the outset."

Matthew Lasar
Matt writes for Ars Technica about media/technology history, intellectual property, the FCC, or the Internet in general. He teaches United States history and politics at the University of California at Santa Cruz. Emailmatthew.lasar@arstechnica.com//Twitter@matthewlasar